United States v. Juan D. Berroa-Medrano A/K/A Kalin A/K/A Jose Rafael Rivero Jose Rivero
Docket: 01-2212
Court: Court of Appeals for the Third Circuit; September 6, 2002; Federal Appellate Court
Juan D. Berroa-Medrano pled guilty to conspiracy to distribute heroin but reserved the right to contest the weight of the heroin during sentencing. At sentencing, the court considered the total weight of two packages, approximately 1 kilogram, despite one package containing mostly cutting agents and only trace amounts of heroin. Berroa appealed, arguing that the court should have focused on the net weight of the heroin. The United States Court of Appeals for the Third Circuit affirmed the sentence, ruling that the District Court correctly included the entire weight of any mixture containing a detectable amount of heroin. The facts reveal that Berroa and co-defendant Mustafa Alabed arranged a sale of heroin to a confidential informant, who later alerted law enforcement. Upon arrest, the larger package was found to contain mostly procaine and lidocaine, while the smaller package tested positive for heroin at a low purity level.
On December 3, 1997, a federal grand jury indicted Berroa in absentia for conspiracy and distribution of heroin, as well as for distributing heroin near a school, and for using a firearm in connection with drug trafficking. Berroa was arrested in December 1998 on unrelated state charges and subsequently transferred to the Eastern District of Pennsylvania for the federal indictment. He pleaded guilty on February 22, 1999, to a charge of distribution of heroin under a plea agreement that dismissed the other charges and did not specify the drug quantity for sentencing.
On May 2, 2001, the District Court sentenced Berroa, concluding that the Sentencing Guidelines required the total weight of the heroin packages to be included in the sentence calculation, which exceeded one kilogram. The court set Berroa's guideline range at 168-210 months but granted a downward departure for low drug purity, ultimately sentencing him to 100 months imprisonment, 5 years of supervised release, and a $2,500 fine. Berroa appealed the sentence, and the appellate court has jurisdiction to review the case under 28 U.S.C. 1291, applying de novo review to the District Court's application of the Sentencing Guidelines.
The District Court based its calculations on the Drug Quantity Table in U.S.S.G. 2D1.1, which specifies that the weight of a controlled substance includes the entire weight of any mixture containing a detectable amount. The court determined it must include the weight of both drug packages, despite unusual circumstances regarding drug purity. Ultimately, Berroa's base offense level was calculated at 34, including a 2-step increase for obstruction of justice due to a false identity charge.
The District Court's decision to include the total weight of a heavily adulterated package in Berroa's sentencing is supported by precedent, as established in cases such as United States v. Butch, where the entire weight of a drug package must be considered even if the controlled substance constitutes a small percentage. The court referenced multiple cases illustrating that the gross weight of mixtures containing controlled substances should be factored into sentencing, regardless of the proportion of the illegal substance present.
Berroa argues that the trace amounts of controlled substances, combined with a large quantity of cutting agents, do not constitute a "mixture" or "substance" as defined by statute or common understanding. The Supreme Court has indicated that these terms should be interpreted by their ordinary meanings, as there are no specific definitions in the relevant statutes or guidelines. In Chapman v. United States, the Court determined that the weight of LSD included the blotter paper it was absorbed in, as they formed a single entity that could not be easily separated.
In Berroa's case, the heroin was similarly blended with procaine and lidocaine in such a way that it could not be distinguished or separated, thus qualifying as a "mixture" or "substance" under the criteria established in Chapman. Berroa's reliance on United States v. Rodriguez is an attempt to differentiate his case; however, in Rodriguez, the court ruled that the weight of boric acid should not be included in sentencing calculations because it was not integrated with the cocaine like the LSD was with the blotter paper in Chapman. Therefore, the distinct circumstances in Rodriguez do not undermine the applicability of the Chapman reasoning to Berroa's situation.
Berroa contends that his intent was to deceive the informant by selling a diluted "gag bag" rather than a kilo of heroin, asserting that the minimal amount of heroin indicates this intent. He argues that, similar to the defendants in Rodriguez, the court should not factor in the weight of non-controlled substances when determining his sentence. However, the court finds Berroa's interpretation of Rodriguez overly restrictive. The Rodriguez decision highlighted the meaning of "mixture" and distinguished it from cases like Chapman based on distinct characteristics of the substances involved. Unlike Rodriguez, where the boric acid and cocaine remained separate and the boric acid was not consumable, Berroa's heroin was inseparably mixed with procaine and lidocaine, which are common cutting agents for heroin. The court notes that Berroa's argument that the larger mixture is not marketable or consumable is flawed, as the presence of cutting agents like procaine and lidocaine is intended to increase the mixture's usability and profitability, thus making it marketable. The court concludes that the weight of the entire package should be included in Berroa's sentencing calculation under 841(a)(1).
Congress intended for the weight of dilutants, cutting agents, or carrier mediums to be included in the sentencing weight of drugs like heroin and cocaine, even if the drug concentration is low. This approach aims to prevent lighter sentences for retail traffickers who, despite dealing in smaller amounts of pure drugs, contribute to ongoing street markets. A mixture containing even a small amount of a controlled substance along with common cutting agents constitutes a "marketable mixture," necessitating inclusion of the entire mixture's weight for sentencing.
Berroa argued that a "trace" of heroin does not count as a "detectable amount" under the Sentencing Guidelines. However, only one Circuit has supported this view, which the Court disagrees with, emphasizing that the statute and guidelines require consideration of any detectable amount of a controlled substance. Although initial field tests were negative, subsequent lab tests confirmed traces of heroin, qualifying as detectable.
Berroa also contended that the low purity of the heroin warranted a downward departure from sentencing guidelines. The District Court granted a significant departure, resulting in a 100-month sentence, which was over five years less than the initial guideline range of 168-210 months. This departure addressed Berroa's concerns about perceived inequity due to low drug purity. Ultimately, the Court affirmed that the traces of heroin in the lab tests constituted a detectable amount and that the District Court appropriately included the entire weight of the larger package in Berroa's sentencing calculation under U.S.S.G. 2D1.1.
The Honorable John R. Gibson, a United States Circuit Judge, presided over a case involving Alabed, who pleaded guilty to distributing heroin in violation of 21 U.S.C. § 841(a)(1). Alabed received a sentence of 60 months in prison followed by five years of supervised release. Under § 841(a)(1), it is illegal to manufacture, distribute, or possess controlled substances with intent to do so. The U.S. Sentencing Guidelines (U.S.S.G.) § 2D1.1, particularly Application Note 9, suggests that a higher purity of a controlled substance may warrant an upward departure in sentencing, reflecting the defendant's role in distribution. Conversely, while some courts have ruled that a downward departure for low drug purity is permissible, there is no consensus on this issue. In this case, the Government accepted that the District Court could exercise discretion to impose a downward departure based on low purity and did not contest this on appeal. Additionally, U.S.S.G. § 2D1.1 sets the base offense level for drug trafficking offenses, which could have resulted in a lower sentence for Berroa had only the smaller package's contents been considered. The term "gag bag" refers to a diluted or fake drug container. Ultimately, the Government reiterated its acknowledgment of the District Court's discretion regarding low purity without contesting it on appeal.
